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Babb v. Wilkie 18-882
Babb v. Wilkie 18-882
Syllabus
Syllabus
Syllabus
Syllabus
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and BREYER, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined,
and in which GINSBURG, J., joined as to all but footnote 3. SOTOMAYOR,
J., filed a concurring opinion, in which GINSBURG, J., joined. THOMAS, J.,
filed a dissenting opinion.
Cite as: 589 U. S. ____ (2020) 1
No. 18–882
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1 The General Schedule (GS) is a federal pay scale that is divided into
sons for the challenged actions, and that no jury could rea-
sonably conclude that those reasons were pretextual.
Babb appealed, contending that the District Court should
not have used the McDonnell Douglas framework because
it is not suited for “mixed motives” claims. She argued that
under the terms of the ADEA’s federal-sector provision, a
personnel action is unlawful if age is a factor in the chal-
lenged decision. As a result, she explained that even if the
VA’s proffered reasons were not pretextual, it would not
necessarily follow that age discrimination played no part.
The Eleventh Circuit panel that heard Babb’s appeal
found that her argument was “foreclosed” by Circuit prece-
dent but added that it might have agreed with her if it were
“writing on a clean slate.” Babb v. Secretary, Dept. of Vet-
erans Affairs, 743 Fed. Appx. 280, 287 (2018) (citing Trask
v. Secretary, Dept. of Veterans Affairs, 822 F. 3d 1179 (CA11
2016)).
We granted certiorari, 588 U. S. ___ (2019), to resolve a
Circuit split over the interpretation of §633a(a).
II
That provision of the ADEA states in relevant part: “All
personnel actions affecting employees or applicants for em-
ployment who are at least 40 years of age . . . shall be made
free from any discrimination based on age.” 29 U. S. C.
§633a(a).
The Government interprets this provision to impose lia-
bility only when age is a but-for cause of an employment
decision. According to the Government, even if age played
a part in such a decision, an employee or applicant for em-
ployment cannot obtain any relief unless it is shown that
the decision would have been favorable if age had not been
taken into account. This interpretation, the Government
contends, follows both from the meaning of the statutory
text and from the “default rule” that we have recognized in
4 BABB v. WILKIE
2
So much for the individual terms used in §633a(a). What
really matters for present purposes is the way these terms
relate to each other. Two matters of syntax are critical.
First, “based on age” is an adjectival phrase that modifies
the noun “discrimination.” It does not modify “personnel
actions.” The statute does not say that “it is unlawful to
take personnel actions that are based on age”; it says that
“personnel actions . . . shall be made free from any discrim-
ination based on age.” §633a(a). As a result, age must be a
but-for cause of discrimination—that is, of differential
treatment—but not necessarily a but-for cause of a person-
nel action itself.
Second, “free from any discrimination” is an adverbial
phrase that modifies the verb “made.” Ibid. Thus, “free
from any discrimination” describes how a personnel action
must be “made,” namely, in a way that is not tainted by
differential treatment based on age. If age discrimination
plays any part in the way a decision is made, then the
decision is not made in a way that is untainted by such
discrimination.
This is the straightforward meaning of the terms of
§633a(a), and it indicates that the statute does not require
proof that an employment decision would have turned out
differently if age had not been taken into account.
To see what this entails in practice, consider a simple ex-
ample. Suppose that a decision-maker is trying to decide
whether to promote employee A, who is 35 years old, or em-
ployee B, who is 55. Under the employer’s policy, candi-
dates for promotion are first given numerical scores based
on non-discriminatory factors. Candidates over the age of
40 are then docked five points, and the employee with the
highest score is promoted. Based on the non-discriminatory
factors, employee A (the 35-year-old) is given a score of 90,
and employee B (the 55-year-old) gets a score of 85. But
employee B is then docked 5 points because of age and thus
Cite as: 589 U. S. ____ (2020) 7
the term “made” refers to a particular moment in time, i.e., the moment
when the final employment decision is made. We agree, but this does
not mean that age must be a but-for cause of the ultimate outcome. If,
8 BABB v. WILKIE
B
The Government’s primary argument rests not on the
text of §633a(a) but on prior cases interpreting different
statutes. But contrary to the Government’s argument,
nothing in these past decisions undermines our interpreta-
tion of §633a(a).
1. In Safeco Ins. Co. of America v. Burr, 551 U. S., at 63,
we interpreted a provision of the Fair Credit Reporting Act
(FCRA) requiring that notice be provided “[i]f any person
takes any adverse action with respect to any consumer that
is based in whole or in part on any information contained in
a consumer [credit] report.” 15 U. S. C. §1681m(a) (empha-
sis added). This language is quite different from that of 29
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at the time when the decision is actually made, age plays a part, then the
decision is not made “free from” age discrimination.
It is not clear that Babb actually disagrees with the Government on
this point, although the many references in her brief to the decision-
making process could be read to mean that §633a(a) can be violated even
if age played no part whatsoever when the actual decision was made. If
that is what Babb wants to suggest, however, we must disagree. It is
entirely natural to regard an employment decision as being “made” at
the time when the outcome is actually determined and not during events
leading up to that decision. See American Heritage Dictionary, at 788
(def. 10) (defining “make” as “[t]o arrive at” a particular conclusion, i.e.,
to “make a decision”). And holding that §633a(a) is violated when the
consideration of age plays no role in the final decision would have star-
tling implications.
Consider this example: A decision-maker must decide whether to
promote employee A, who is under 40, or employee B, who is over 40. A
subordinate recommends employee A and says that the recommendation
is based in part on employee B’s age. The decision-maker rebukes this
subordinate for taking age into account, disregards the recommendation,
and makes the decision independently. Under an interpretation that
read “made” expansively to encompass a broader personnel process,
§633a(a) would be violated even though age played no role whatsoever
in the ultimate decision. Indeed, there might be a violation even if the
decision-maker decided to promote employee B. We are aware of no other
anti-discrimination statute that imposes liability under such circum-
stances, and we do not think that §633a(a) should be understood as the
first.
Cite as: 589 U. S. ____ (2020) 9
U. S. C. §633a(a).
In §1681m(a), the phrase “based . . . on any information
contained in a consumer [credit] report” modifies “adverse
action,” and thus the information in question must be a but-
for cause of the adverse action. By contrast, in §633a(a),
“based on” does not modify “personnel actions”; it modifies
“discrimination,” i.e., differential treatment based on age.
The Government tries to find support in Safeco’s discus-
sion of FCRA’s reference to an adverse action that is “based
. . . in part” on a credit report. 15 U. S. C. §1681m(a) (em-
phasis added). The Safeco Court observed that the phrase
“in part” could be read to mean that notice had to be given
“whenever the report was considered in the rate-setting
process,” but it rejected this reading. 551 U. S., at 63. The
Government suggests that the Court reached this conclu-
sion because it thought that Congress would have “said so
expressly” if it had meant to require notice in situations
where consideration of a credit report was inconsequential.
Brief for Respondent 19. Accordingly, the Government ar-
gues, because §633a(a) does not say expressly that consid-
eration of age is unlawful, we should conclude that mere
consideration is insufficient to trigger liability. See id., at
19–20.
This argument fails for two reasons. First, as explained
above, the language of §633a(a) does expressly impose lia-
bility if age discrimination plays a part in a federal employ-
ment decision. Second, Safeco did not invoke the sort of
super-plain-statement rule that the Government now at-
tributes to it. Instead, the Safeco Court rejected the argu-
ment on other grounds, including its assessment of the par-
ticular statutory scheme at issue. See 551 U. S., at 63–64.
That reasoning obviously has no application here.
2. In Gross v. FBL Financial Services, Inc., 557 U. S. 167,
we interpreted the private-sector provision of the ADEA, 29
U. S. C. §623(a)(1), and held that it requires a plaintiff to
10 BABB v. WILKIE
prove that “age was the ‘but-for’ cause of the employer’s ad-
verse action.” 557 U. S., at 177. But as we previously rec-
ognized, the ADEA’s private- and public-sector provisions
are “couched in very different terms.” Gómez-Pérez v. Pot-
ter, 553 U. S. 474, 488 (2008).
Section 623(a)(1) makes it “unlawful for an employer . . .
to fail or refuse to hire or to discharge any individual or oth-
erwise discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of em-
ployment, because of such individual’s age.” Thus, the but-
for causal language in §623(a)(1)––“because of such individ-
ual’s age”––is an adverbial phrase modifying the verbs (“to
fail or refuse to hire,” etc.) that specify the conduct that the
provision regulates. For this reason, the syntax of
§623(a)(1) is critically different from that of §633a(a),
where, as noted, the but-for language modifies the noun
“discrimination.” This is important because all the verbs in
§623(a)(1)—failing or refusing to hire, discharging, or oth-
erwise discriminating with respect to “compensation,
terms, conditions, or privileges of employment”—refer to
end results.4 By contrast, the provision in our case,
§633a(a), prohibits any age discrimination in the
“mak[ing]” of a personnel decision, not just with respect to
end results.
3. Finally, in University of Tex. Southwestern Medical
Center v. Nassar, 570 U. S. 338, we interpreted Title VII’s
anti-retaliation provision, 42 U. S. C. §2000e–3(a), as re-
quiring retaliation to be a but-for cause of the end result of
the employment decision. The Court saw no “meaningful
textual difference between the text [of that provision] and
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4 Moreover, even if “discriminating with respect to compensation,
the one in Gross,” 570 U. S., at 352, and the Court found
support for its interpretation in the rule that recovery for
an intentional tort generally requires proof “ ‘that the harm
would not have occurred’ in the absence of—that is, but
for—the defendant’s conduct.” 570 U. S., at 346–347 (quot-
ing Restatement of Torts §431, Comment a, pp. 1159–1160
(1934)).
That reasoning has no application in the present case.
The wording of §633a(a)––which refers expressly to the
“mak[ing]” of personnel actions in a way that is “free from
any discrimination based on age”––is markedly different
from the language of the statutes at issue in Gross and Nas-
sar, and the traditional rule favoring but-for causation does
not dictate a contrary result. Section 633a(a) requires proof
of but-for causation, but the object of that causation is “dis-
crimination,” i.e., differential treatment, not the personnel
action itself.
For these reasons, Safeco, Gross, and Nassar are entirely
consistent with our holding in this case.
C
We are not persuaded by the argument that it is anoma-
lous to hold the Federal Government to a stricter standard
than private employers or state and local governments.
That is what the statutory language dictates, and if Con-
gress had wanted to impose the same standard on all em-
ployers, it could have easily done so.
As first enacted, the ADEA “applied only to actions
against private employers.” Lehman v. Nakshian, 453 U. S.
156, 166 (1981). In 1974, “Congress expanded the scope of
the ADEA” to reach both state and local governments and
the Federal Government. Ibid. To cover state and local
governments, Congress simply added them to the definition
of an “employer” in the ADEA’s private-sector provision, see
29 U. S. C. §630(b), and Congress could have easily done the
12 BABB v. WILKIE
It is so ordered.
Cite as: 589 U. S. ____ (2020) 1
No. 18–882
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No. 18–882
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1 Courts have followed similar reasoning when determining the stand-
ard of causation under the Americans with Disabilities Act. See, e.g.,
Natofsky v. New York, 921 F. 3d 337, 346–348 (CA2 2019); Gentry v. East
West Partners Club Mgmt. Co., 816 F. 3d 228, 233–236 (CA4 2016); Ser-
watka v. Rockwell Automation, Inc., 591 F. 3d 957, 961–964 (CA7 2010).
6 BABB v. WILKIE
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2 Many Courts of Appeals apply the motivating-factor standard to
federal-sector Title VII claims. See, e.g., Ponce v. Billington, 679 F. 3d 840,
844 (CADC 2012); Makky v. Chertoff, 541 F. 3d 205, 213–214 (CA3 2008).
Even assuming this is a correct interpretation, see 42 U. S. C. §2000e–
16(d) (incorporating by reference the private-sector motivating-factor
provisions), the Court’s “any consideration” rule imposes an even lower
bar. No party submitted briefing on the criteria that courts or the Equal
Employment Opportunity Commission (EEOC) use to establish a moti-
vating factor, but the cases from which this standard was derived indi-
cate that it mirrored the tort concept of substantial cause. See, e.g., Price
Waterhouse v. Hopkins, 490 U. S. 228, 249 (1989) (plurality opinion); Mt.
Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977).
8 BABB v. WILKIE
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3 On this score, it is worth mentioning that even the EEOC has not